The height of a building? It is always measured taking the highest elevation as a reference, even when rewards are foreseen for anti-seismic consolidation and energy requalification. No, therefore, to the calculation of the bonus on the average and the possibility of thus exceeding the maximum height established by the urban planning for that area.
A principle affirmed by sentence 5987/2026 with which the Council of State rejected the appeal of a real estate company which supported the possibility of applying premium increases considering the “geometric mean” of the height for a building built on sloping land. The judges of Palazzo Spada, however, reiterated that the possibility of applying a different method with respect to the measurement of the highest elevation is permitted only when it falls within the cases expressly indicated by the regulations, and for any exceptions one must refer only to the legislation in force at the time of issuing the building permit.
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Reconstruction and rewards
The story arises from a demolition intervention of a 1970s villa rebuilt with anti-seismic and energy efficiency criteria, and transformed into a new building consisting of a basement containing a garage, a basement, two floors above ground and a further floor for ancillary services, initially with nine apartments, which later became ten thanks to the approval of a variant to the project.
The intervention was carried out by taking advantage of the super-premium of the Umbria regional law (art. 51 of LR 1/2015), which grants up to 3.50 linear meters more height for buildings that reach energy class A.
Since the area master plan set the limit at 6.50 metres, the new building should strictly not exceed 10 meters in total. However, the highest façade at the end of the works reached 11.20 metres. Hence the neighbors’ appeal accepted by the TAR and then confirmed by the Council of State.
Current legislation and previous planning
According to the builder, however, the building would have been perfectly in order since it was located on a hill, so the height had to be calculated by taking the mathematical average of the four sides, and not on the highest facade. Furthermore, a derogation from the maximum height of ten meters had previously been foreseen in the same area. Both theses rejected by the judges.
In the first case, the text of the Regional Regulation specifies that “for buildings with particular plan-volumetric articulation and architectural composition or located on sloping terrain at different altitudes, the height is given by the highest of the heights of each facade… of the buildings into which the building itself can be broken down” and the exception is permitted only if the inclination of the roof pitches is greater than thirty-five percent. In this case “the height of the building is measured with reference to the average distance between the ridge line and the extrados of the last floor. For buildings or parts of them with a single pitched roof, the distance is the average between the height measured at the ridge and at the eaves”. In the present case the inclination was four percent.
On the second question, the TAR had already underlined that since it was a new intervention, and therefore not carried out in implementation of previous planning, the maximum reference height to be taken as the basis for the increase of a further 3.50 meters could only be that of the urban planning instrument in force at the time of issuing the building permit, without any possibility of referring to the exceptions provided for in the past.
Renovation without demolition and maximum height
Furthermore, the same ruling underlines that all indications on height must be taken into consideration in reference to the methods of the building intervention. In practice, the problem of respecting the heights according to the parameters in force arises only for new buildings (including additions) and for demo-reconstructions with modification of the height. However, in the case of renovations with unchanged height, this, although higher than the current standards, can obviously be maintained.
Appeal only at the end of the work
Another interesting principle that emerges from the ruling is that relating to the neighbors’ right to challenge the building intervention. The Council of State has in fact specified that in this case the appeal can take place at the end of the works, i.e. when it is possible to verify the actual height of the construction. The protest is therefore permitted at the end of the works in all cases in which it is intended to refer not to the right to build but to the methods of carrying out the intervention.
Summary table of the rules
Here is the summary scheme of controls and rules based on the sentence:
|
Control Parameter |
The Builder’s (failed) thesis |
The strict rule of the Council of State |
The consequence |
|---|---|---|---|
|
The calculation of the height on the slopes |
Take the mathematical average of the four sides of the building (Sum of the sides divided by 4). |
The height of the building is given only by the greatest of the heights of each individual facade (Art. 18 RR 2/2015). |
If just one side of the building exceeds the limit of meters allowed, the work is totally illegal. |
|
The use of old master plans |
Apply the PRG criteria from the time of the original subdivision. |
New demo-reconstruction interventions are subject to current regional building parameters. |
There is no right to apply old municipal calculation rules for new construction sites. |
|
The exemption for pitched roofs |
Calculate the average ridge distance for any type of sloped roof. |
The average calculation is permitted only if the slopes have a slope greater than that indicated by the regulation |
Roofs that are almost flat or have minimal slopes fall within the rules of standard flat roofs. |
|
The times for the neighbor’s appeal |
The deadlines for appealing start immediately at the start of the construction site or with the neighborhood complaint. |
If the actual height is contested, the deadlines only come into effect upon structural completion of the works. |
The private individual has the right to wait until the height is visually perceivable before contesting the title. |
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